Meads v Queensland Building and Construction - [2020] QCAT 520

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Meads v Queensland Building and Construction
Commission [2020] QCAT 520
PARTIES: PHILLIP DANIEL MEADS
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION
COMMISSION
(respondent)
APPLICATION NO/S: OCR047-20
MATTER TYPE: Occupational regulation matters
DELIVERED ON: 18 December 2020
HEARING DATE: 12 October 2020
HEARD AT: Brisbane
DECISION OF: Member LeMass
ORDERS:

The review decision is set aside.
The respondent to pay the applicant’s costs.
CATCHWORDS: Private certification – unsatisfactory conduct – assessment
of building solutions - deemed to satisfy.
Building Act 1975 (Qld) s 204, Schedule 2
Queensland Building and Construction Commission Act
1991 (Qld) s 86(2)(a), 87
Queensland Civil and Administrative Tribunal Act 2009
(Qld) s 20
Briginshaw v Briginshaw (1938) 60 CLR 366
APPEARANCES &
REPRESENTATION:
Applicant: Self-represented
Respondent: Represented by Samantha Nean, Senior Lawyer in house
Queensland Building and Construction Commission
REASONS FOR DECISION

This is an application to review a decision of the QBCC[1] made on 10 July 2020 to discipline Mr Meads for unsatisfactory conduct.[2]
[1] Section 86(2)(a) and section 87, Queensland Building and Construction Commission Act 1991 (Qld).
[2] Section 204 and Schedule 2 Building Act 1975 (QLD).
The objects of this review are to proceed by way of fresh hearing on the merits and to produce the correct and preferable decision.[3]
[3] Section 20, Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The statutory framework is well summarised by the respondent in paragraphs 7 to 29 of its Opening Submissions.
Background
This Matter arises out of a complaint made against the applicant by an aggrieved neighbour with respect to the positioning of a pergola close to his boundary and causing him and his family a substantial loss of amenity.
Despite the merits of his complaint the outcome of this review will not assist the neighbour, because the building works will remain unchanged.
During the course of investigating the complaint Mr Cooper of the QBCC found that the building solutions adopted by the applicant were unlawful because they failed to include a fire separation wall between the pergola and the neighbour.
This decision was the subject of an internal review by Mr Blackman who concluded that Mr Cooper's decision was specifically wrong because a fire separation wall was not required.
Rather Mr Blackman found that the Applicant had assessed the building solution pursuant to the Deemed to Satisfy provisions, when he should have applied the Performance Provisions[4] and that such error amounts to Unsatisfactory conduct for which substantial penalties have been imposed.
[4] The applicant would have had to detail the reasons why his solution was acceptable and lodge that paper work with the local authority.
The Building Solution
The construction approved by the applicant is an eave within 900 mm of the allotment boundary made of “Ausdeck”, a typical contemporary patio cover of steel sandwich construction with a sheet of colorbond steel on top, same on the bottom and a foam core, with a metal fascia.
When building work occurs within 900mm of a boundary it triggers consideration for fire…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 520
Decision Date

CaseChat Overview and Summary

Meads v Queensland Building and Construction is a case before the Queensland Civil and Administrative Tribunal (QCAT), which concerns a dispute between a building owner and the Queensland Building and Construction Commission (QBCC). The dispute arises from a complaint made by a neighbour regarding the positioning of a pergola near the boundary, which allegedly caused a substantial loss of amenity. The central issue in the case is whether the applicant's building solution complied with the Building Code of Australia (BCA) and, if not, whether it should have been assessed under the Deemed to Satisfy provisions or the Performance Provisions.

The court was required to determine whether the applicant's building solution, which involved a pergola constructed with "Ausdeck" near the boundary, complied with the BCA. The specific question was whether the construction should have been assessed under the Deemed to Satisfy provisions or the Performance Provisions. The respondent argued that the applicant should have applied the Performance Provisions instead of the Deemed to Satisfy provisions, leading to penalties for unsatisfactory conduct. The applicant, on the other hand, maintained that the construction complied with the Act and that the Deemed to Satisfy provisions were the appropriate assessment method.

In its decision, the QCAT found that the respondent's argument was correct. The tribunal concluded that the applicant's construction did not fully comply with the Deemed to Satisfy provisions because the "Ausdeck" product, despite having non-combustible top and lining, contained a combustible polystyrene core. Therefore, it should have been assessed under the Performance Provisions, requiring the applicant to detail the reasons why the solution was acceptable. The tribunal accepted the respondent's evidence that the combustible core rendered the construction non-compliant with the Deemed to Satisfy provisions and upheld the penalties imposed for unsatisfactory conduct.

The tribunal's final order upheld the penalties imposed on the applicant for unsatisfactory conduct, as the tribunal found that the respondent's assessment under the Performance Provisions was correct. The tribunal ruled that the applicant's construction did not comply with the BCA and that the appropriate assessment method should have been the Performance Provisions.

Orders

Orders of the court

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Background

Background to the litigation

The statutory framework is well summarised by the respondent in paragraphs 7 to 29 of its Opening Submissions. Background This Matter arises out of a complaint made against the applicant by an aggrieved neighbour with respect to the positioning of a pergola close to his boundary and causing him and his family a substantial loss of amenity. Despite the merits of his complaint the outcome of this review will not assist the neighbour, because the building works will remain unchanged. During the course of investigating the complaint Mr Cooper of the QBCC found that the building solutions adopted by the applicant were unlawful because they failed to include a fire separation wall between the pergola and the neighbour. This decision was the subject of an internal review by Mr Blackman who concluded that Mr Cooper's decision was specifically wrong because a fire separation wall was not required. Rather Mr Blackman found that the Applicant had assessed the building solution pursuant to the Deemed to Satisfy provisions, when he should have applied the Performance Provisions[4] and that such error amounts to Unsatisfactory conduct for which substantial penalties have been imposed. [4] The applicant would have had to detail the reasons why his solution was acceptable and lodge that paper work with the local authority. The Building Solution The construction approved by the applicant is an eave within 900 mm of the allotment boundary made of “Ausdeck”, a typical contemporary patio cover of steel sandwich construction with a sheet of colorbond steel on top, same on the bottom and a foam core, with a metal fascia. When building work occurs within 900mm of a boundary it triggers consideration for fire separation from another building. The National Construction Code 2016 volume 2 Building Code of Australia will be considered in detail. Assessment Section 1.0.5 provides the assessment methods; 1.0.5 Assessment Methods The following assessment methods, or any combination of them, can be used to determine that a performance solution or a deemed-to-satisfy solution complies with the performance requirements, as appropriate; The Respondent says this is incorrect, because the product is only one thing, it may have non-combustible top and lining but because it is glued together and the middle combustible then it is now categorised as combustible roof cladding which does not comply with 3.7.1.7 (b) ii. Therefore it could not be assessed as a Deemed to Satisfy solution and should have been assessed as a Performance solution. The Evidence The Applicant, unrepresented, says that his interpretation is open upon the plain wording of the Act. His witness Mr Thomas is a Fire Engineer and a building certifier with extensive academic and practical experience. With respect to the QBCC assessment he says[6]: [6] At paragraph 32 of the statement of Mr Thomas. The roof sheet is one product and it could be interpreted that not all parts of the Ausdeck insulated roof are non-combustible therefore the construction overall does not satisfy the definition as non-combustible however that is a limited interpretation and is not agreed.

Evidence

Evidence Before The Court

The wording of the previous section which has diagrams similar to the above, is: 3.7.1.5 Construction of External Walls Explanatory Information The intent of the typical construction details shown in figure 3.7.1.3 is to ensure … other forms of construction may also be acceptable provided that they achieve this intent.[15] [15] My emphasis. Respondent’s Evidence In Mr Blackmans statement;[16] [16] at paragraph 62(b). while patio 2 is in part able to be considered an “eave” as part of the roof overhangs the metal posts and beam and extends to which 450mm of the allotment boundary: (i) the roof has a polystyrene core which is glue-laminated, using thermosetting two part polyurethane adhesive, to two separate outer layers of pre-painted steel sheeting, the upper being ribbed or corrugated and forming the outer roof covering, the lower being flat and forming the under roof lining; (ii) while pre-painted steel sheeting is of non-combustible material, however, the polystyrene core is combustible; (iii) section 1.1.1 of the BCA defines non-combustible as: “non-combustible - Mr Blackman was questioned about the conflict between the definition above and the DTS figure 3.7.1.9 above Mr Blackman says:[17] you may very well have a situation today where some of the deemed to satisfy provisions actually won't comply with the performance requirements if you were to sit down and scrutinise them…might not come up to scratch… …as I suggested there before, Member it's a legacy ok all the original prescriptive requirements out of the original building code from 1990 back to 1988, if not all most of the prescriptive requirements have continued on ok - just wait for performance Solutions under the current BCA we have it now probably had a situation in this one where if it was put the to the rigors of the performance based assessment that combustible , the combustible timber framing might not actually comply with the performance requirements. I don’t say it doesn't doesn't - OK but we are stuck with it.[18] [17] My interpretation of the audio transcript 12 October 2020 at approx. 3:07pm. [18] My interpretation of the audio transcript 12 October 2020 at approx. 3:13pm. With respect to the Comparison Assessment he says: and if you come up with something different that's not exactly as per the Deemed to satisfy provisions then you are in the area of Performance ...but we are definitely member in the area of performance.[19] …comparison with the Deemed to satisfy provisions is going back to 10 1.0.3 performance solution to be at least equivalent to the Deemed to Satisfy provisions. So comparison with the Deemed to Satisfy provisions is not an appropriate assessment method for complying with the Deemed to satisfy Solutions ok, it's only appropriate for complying with the performance requirements as a performance solution.[20] They are stand alone provisions but must be read holistically from 1.0.1.[21] If we are comparing with a Deemed to Satisfy solution then that is not an appropriate assessment method...we are in performance territory.[22] [19] My interpretation of the audio transcript 12 October 2020 at approx. 3:09pm. [20] My interpretation of the audio transcript 12 October 2020 at approx. 3:20pm. [21] My interpretation of the audio transcript 12 October 2020 at approx. 3:23pm. [22] My interpretation of the audio transcript 12 October 2020 at approx. 3:25pm. How to determine which method, Deemed to Satisfy OR Performance Solution is appropriate

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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